Campus forum: David D. Caron

These are the prepared remarks delivered by David D. Caron at a forum of UC Berkeley faculty experts convened at Zellerbach Hall on April 1, 2003, to discuss the war with Iraq. Caron is the Boalt Hall School of Law’s C. William Maxeiner Distinguished Professor of Law, on the board of editors of the American Journal of International Law, a member of the precedent panel of the U.N. Compensation Commission for claims arising from the Gulf War and on the Department of State Advisory Committee on Public International Law.

'The U.S. has sought these unilateral actions in pursuit of national interests which it perceives as best protected by the preservation of our discretion ... In doing so, this Administration has alienated longtime allies and belittled the value of cooperation. In my view, in short, it stopped listening to arguments it needed to hear. ' —David Caron

I wish to remember at the outset this evening Professor Ernst Haas, one of the world's authorities on the United Nations, whose recent passing as a member of our community leaves a tremendous hole and who would have no doubt been a speaker on this panel tonight. And I thank David for those kind words. I would say that the advice of the [Department of State] Advisory Committee has not been sought on the recent actions.

On the surreal morning of Sept. 11, 2001, I came to the university as usual and much of my seminar that morning was devoted to discussion of what had happened and what was likely to follow. And a student remarked at that seminar, and it was a statement I heard often over the coming days, "Maybe now people will listen." What I found very interesting about that remark was that people of all political views were saying the same thing. And what became apparent was that people were saying, "Maybe now people will listen to me, to what I know to be the truth." It is so hard to listen when one holds a passionate belief, when one does not believe the other side is listening in good faith, and so I thank the Chancellor for doing what a university does best, in providing a forum for questions to be asked and I have plenty of questions already based on just two talks, and for us to listen to one another and I appreciate the listening that is already going on here.

I have three brief points and they are about the implications of the recent conflict for international law and the United Nations.

First, the implications of this conflict for the law regarding the use of force, and particularly the decision to go to war. I have two preliminary points. One is that I'm talking about international law and not the U.S. legal system, which only partly incorporates international law. And second that legality should not be confused with the wisdom of a choice, with the legitimacy of that choice, or with morality. Just because one has the right possibly to do something does not mean that one should do so.

Under the international legal system, legal analysis begins and ends, since the Second World War with the U.N. Charter, which prohibits the use of force such as is taking place in Iraq unless the Security Council has authorized such use or the state involved is using such force in self-defense. As to self-defense, although the Administration rhetorically often speaks about protecting the United States in its current action against Iraq, the State Department, in my reading, has gone to great lengths to rest the legality of the current action on authorization by the Security Council. I'll get to that in just a moment.

But let me say just a few things about the implications, the pressures on the concept of self-defense. The design of the U.N. Charter errs toward prohibiting war. One either must have authorization of the Council, or there must be "an armed attack" against which one individually or collectively acts in self-defense. That choice, to tend toward prohibiting the use of force, reflected the lessons learned from two world wars when the Charter was written in 1945.

In acknowledgment to this Administration, this Administration would argue that it also preceded the full appreciation of how weapons of mass destruction might make such a definition of self-defense unworkable.

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The Administration over the past year at times has put forward an argument for preemptive self-defense. That is, a state has a right of self-defense before an armed attack occurs. The Administration's argument, at times, is that the notion of self-defense has always included this possibility and some scholars would argue that self-defense at least includes imminent armed attack, although the Administration's definition is vaguer and apparently broader.

At other times, the Administration has argued that the threat posed by weapons of mass destruction requires such a change in the doctrine of self-defense. If preemptive self-defense is not part of the inherent right of self-defense provided for in the Charter, then it should be and the law needs to change.

I note the State Department prefers to argue that authority exists on the basis of Security Council Resolutions. Why would that be? In my own view, it is because there is doubt that a change in the doctrine of self-defense is at all desirable. The preemptive self-defense argument obviously is more accommodating to the use of force but many if not all use of force have unknown destabilizing tendencies.

The conventional wisdom has been that a stable international order requires a doctrine on use of force with bright lines. An armed attack is a bright line. The assertion that another country's possession or possible possession of weapons of mass destruction and that country's hostile intent, or possible hostile intent toward a target country, is not a bright line. Indeed, in my mind, the element of objective restraint in the proposed doctrine of preemptive self-defense is so minimal that it is more a statement of what I would call discretionary self-defense.

So what are the implications of this doctrine? The combination of terror and weapons of mass destruction are perceived by this Administration as requiring more aggressive and primarily unilateral action. I would note that this is not the only response one could have. Indeed, for years the United States has urged other nations confronted with terrorists to not forgo civil liberties or overreact. And many such nations have lived with a high level of terror. Another response would be to promote more multilateral action.

The implications of this Administration's statement regarding preemptive self-defense are unclear. On the one hand, many nations have made it clear that they do not accept such a transformation in the doctrine of self-defense. On the other hand, nations such as Australia, Russia, and, most ominously in my view, India have pointed to the possible applicability of that doctrine to their situations.

Although I do not see the law changing per se, it does appear that there is a deep split in the consensus that had existed as to what was required for self-defense and the arguments that the U.S. has previously been able to make to states that they should not overreact in the face of terror has been greatly undermined.

As to the U.S. argument that the current action is authorized by the Security Council we must recall that the diplomatic efforts, as Tom Barnes noted, of this past March ended in failure and the resolution was withdrawn without a vote. The U.S. argument consequently rests upon earlier Resolutions 1441 for the fall of 2002, and 678 and 687 from 1990 and 1991.

It's a long argument to review and I don't have time, but let me say just two things. The first, that the argument that some residual authority from Resolution 678 some 12 years ago, given the circumstances of the intervening period, that there is still some residual authority is not, as some would hope, clearly without merit. It is, at the same time, not an easy case. I don't want to so much insert my own opinion as say that it would be very difficult to predict what the outcome would be. There might be some residual authority. But I think to focus on whether there's residual authority obscures the fact, and I think a clearer fact, that I do not believe whatever residual authority there is, could justify the extent of actions undertaken by the United States at present.

In particular, to take a limiting case, I have very substantial doubts for example why such residual authorization empowers the United States to not involve the United Nations fully in the post-conflict governance of Iraq.

My second point is I'd like to say a few brief words about the implications of this conflict for the United Nations. There's been a great deal of discussion about the irrelevance of the United Nations, the threat that these decisions has for its vitality. My basic message is, Don't count the United Nations out at all. In 1985, the International Court of Justice found against the United States in regard to the United States' then-ongoing paramilitary activities in Nicaragua. At that time, it was predicted by the United States, that this decision would be the end of a significant role for the International Court of Justice in international relations. In fact, I would say, it is precisely the opposite case. The ICJ is used significantly more than ever and it is in part because of its decision in the Nicaragua case. It is too early to predict the future of the United Nations but I suspect it will be only more important to the rest of the world, even as some countries such as the United States express either disappointment or impatience with the United Nations.

The role of the United Nations may very well shift in terms of it being primarily a place for coordination of views and unfortunately often in opposition to the United States.

Finally, I'd like to comment on what I believe to be a critical underlying current that among other things, helps explain why this Administration was unsuccessful in March in not gaining a second resolution. I would disagree with my colleague Tom Barnes. In my view it is a vast overstatement of the influence of France — to say that that country is responsible for there not being a second resolution.

France, in my view, is a contributing cause, opportunistically articulating and solidifying its opposition. France is not a great international citizen. It is very ironic that it appear as the moral leader here.

The primary reason for the failure is the resolution was pushed. We all felt it being pushed. The moving dynamic for the Resolution this spring, rather than this fall or later, was the presence of such substantial number of troops in the region. Having deployed the troops, the United States needed to move this spring. The logic of a military buildup undermined and made disingenuous to other states the seriousness of the diplomatic effort.

But the critical underlying current that I wish to emphasize to you is this Administration's hostility to multilateralism generally. In a phrase, to focus on the war in Iraq is to overlook the broad of range of unilateral actions by this Administration since it took office in January of 2001, a tendency that preceded the September 11 tragedy. I do not have time to address the subject in depth but let it suffice to say that these actions have led to a squandering of a tremendous amount of goodwill, legitimacy and support. The U.S. has sought these unilateral actions in pursuit of national interests which it perceives as best protected by the preservation of our discretion, discretion being the manifestation of true sovereignty.

In doing so, this Administration has alienated longtime allies and belittled the value of cooperation. In my view, in short, it stopped listening to arguments it needed to hear. The tendency toward maximum discretion, in the main, became stronger after September 11. The choice of this Administration was made to preserve U.S. security, U.S. interests by increasing its discretion to act. Even if that increase required the dismantling or undermining of multilateral institutions arrangements for norms.

Read the complete remarks by: Chancellor Berdahl Nezar AlSayyad Thomas G. Barnes David D. Caron Laura Nader Steve Weber Janet Yellen Q&A with audience

What I would urge on this audience is that the change described is even larger, if one considers what the Administration could have done. To move toward unilateralism, that might be justified in crucial areas if one viewed the multilateral as dysfunctional or a sham, and no doubt some in this Administration do so. But the degree of sympathy and global support that existed after September 11 could have easily been used by this Administration to rebuild and strengthen the multilateral institutions. But this Administration chose other possibilities. Rather, it accelerated its existing tendency toward discretion.

I'd like to change my conclusion, in part, having heard Professor Al Sayyad. I think one thing he brings across is that the international and domestic go hand-in-hand and he brings to mind a quote from President Eisenhower's inaugural address exactly 50 years ago on January 23rd. He made many references in that address to the importance of the United Nations and it ended with the following statement.

"Whatever the United States seeks to bring about in the world, it must first bring about in the heart of the America."